Chapter 5 Special Considerations Representing Clients Involved with the Criminal Justice System

LibraryRepresenting Parents in Child Welfare Cases: Advice and Guidance for Family Defenders (ABA) (2015 Ed.)

CHAPTER 5 Special Considerations Representing Clients Involved with the Criminal Justice System

Joanna Woolman

5.01 Introduction

Over the last twenty years, disrupting families because of the incarceration of parents has become an increasingly serious problem in the United States. Never before has the United States had more people, both men and women, in state and federal prisons. With only 5 percent of the world's total population, the United States is responsible for incarcerating 25 percent of the world's total prison population and has the highest incarceration rate in the world. As a result, more children are affected by parental incarceration than ever. In 2010, there were 2.3 million people in jail or prison, compared to just five hundred thousand in 1980. The incarceration of that many adults affected 2.7 million children. Having a parent incarcerated makes children four times more likely to encounter the child protection system. Parental Incarceration and Child Well-Being in Fragile Families, 42 Fragile Families Research Brief 1-2 (2008). In 2009 at least fourteen thousand children were in foster care in the United States due in part to a parent being incarcerated. See U.S. Gov't Accountability Office, GAO-11-863, Child Welfare: More Information and Collaboration Could Promote Ties Between Foster Care Children and Their Incarcerated Parents (2011).

Even though rates of incarceration have skyrocketed, most people are in prison for committing non-violent offenses. See E. Ann Carson & William J. Sabol, Prisoners in 2011, U.S. Department of Justice, Bureau of Justice Statistics, NCJ 239808 (2012). Men and women are serving longer sentences for drug offenses. At the federal level, prisoners serving time on a drug charge comprise half of the prison population. At the state level, drug offenders have increased even more dramatically and reflect changes in drug sentencing practices rather than an increase in criminal activity. Women's incarceration rates have risen at especially alarming levels. According to the website of The Sentencing Project, the rate of women in prison has risen 646 percent since 1980, to a point where one in one hundred African American women are currently in prison, two-thirds of whom are mothers. The current average prison sentence in the United States is over five years. See Lauren E. Glaze & Erinn J. Herberman, Correctional Populations in the United States, 2012, U.S. Department of Justice, Bureau of Justice Statistics, NCJ 243936 (2013).

The vast majority of men and women serving time in state or federal prison will be released. Indeed, in recent years the number of releases from state and federal prisons exceeded the number of admissions. These released prisoners return to their communities, families, and their children's lives.

Incarcerating parents affects children's well-being, but, unlike other separations resulting from divorce, death, or military deployment, a child's loss of a parent because of incarceration is often unacknowledged. Compounding the problem is the difficulty children have in maintaining a relationship after their parents enter prison. In particular, the lack of collaboration between child welfare agencies and corrections departments—the two agencies that control the relationship between an incarcerated parent and his or her child—can inhibit visitation and regular communication between parents in prison and their children.

The most significant barrier that incarcerated parents face in the child protection system is the rigid set of timelines mandated by federal and state laws to achieve permanency. Between 1997 and 2002, termination of parental rights proceedings for incarcerated parents doubled. See When a Parent is Incarcerated, A Primer for Social Workers 9 (2011). This increase was due in large part to the implementation of the Adoption and Safe Families Act (ASFA), enacted in 1997 to promote permanency for children in foster care. Under ASFA, a petition to terminate parental rights must be filed if a child has been placed outside the home for fifteen of the previous twenty-two months, absent compelling circumstances such as child's placement with kin. See generally Chapter 14. In recent years, however, several states have moved to expand judicial discretion to delay termination of parental rights proceedings if the parent's incarceration or former incarceration is a significant factor for the child's continued stay in foster care.

Nonetheless, many incarcerated parents whose children are in the child protection system are at high risk of permanently losing their parental rights. Advocates for parents must be mindful of this reality. For many parents, a prison sentence will result in a loss of physical and legal custody and will require a temporary or permanent alternative custody arrangement in order for the incarcerated parent to retain parental rights (for example, transfer of legal custody to a relative). Zealous advocacy for these clients requires a comprehensive understanding of the child protection system, including legal protections for parents, the child welfare agency's duty to make reasonable efforts to reunify the family, and the accessibility of services in the correctional system. A parent's continued involvement in his or her child's life during incarceration is essential in preventing the termination of his or her parental rights.

This chapter provides suggestions for parents' attorneys representing clients involved with the criminal justice system. Section 5.02 lays out the basic architecture of child protection proceedings as they relate to incarcerated parents, including termination of parental rights proceedings. Section 5.03 discusses special considerations for clients with concurrent criminal charges. Section 5.04 focuses on the constitutional and statutory rights of incarcerated parents. Finally, Section 5.05 is a step-by-step guide through the child protection process for parents' attorneys.

5.02 The Child Protection System and Incarcerated Parents

The permanent loss of parental rights during incarceration can occur in one of two ways. The first scenario takes place outside the child protection system when a child who is not in foster care gets adopted. These cases commonly arise when the custodial parent who is not incarcerated marries or remarries. The new spouse, the child's stepparent, then wishes to adopt the child, which requires terminating the rights of the incarcerated parent. State laws provide that, with certain exceptions, a child cannot be adopted unless the child's parent consents to the adoption. Exceptions to the consent requirement may include situations where the parent has abandoned the child, abused or neglected him, or failed to support or visit him.

The second context in which parental rights may be permanently lost is when a child is already in the custody of the state's foster care system. The state may acquire custody of the child by filing a dependency petition prior to incarceration due to alleged neglect or abuse, or because of the parent's incarceration if there is no relative or third party to assume care for the incarcerated parent's child. Once a child is placed in foster care, the ASFA timelines are invoked.

State laws pertaining to termination of parental rights and adoption were historically aimed at parents who intentionally abandoned their children and disappeared from their lives. The laws are poorly suited to deal with parents involuntarily separated from their children because of incarceration. Involuntary absence and institutional barriers to contact—both factors beyond an incarcerated parent's control—are too often misconstrued as abandonment. In both termination contexts, abandonment is a sufficient justification for terminating parental rights. At least nine states allow incarceration alone to be considered as a ground for termination. See Grounds for Involuntary Termination of Parental Rights, Child Welfare Information Gateway (listing Alabama, Arizona, Arkansas, Colorado, Idaho, North Dakota, Ohio, Tennessee, and Texas).

It is important to note that termination of parental rights does not always result in creating new permanent families for the children of incarcerated parents. The increase in parental rights terminations over the past generation has not led to a corresponding increase in adoptions of terminated children. When compared with other children in state care, children of incarcerated parents are more likely to remain in foster care until they "age out" of the system at age eighteen, even if their parents' rights are terminated. See Marilyn C. Moses, Correlating Incarcerated Mothers, Foster Care, and Mother-Child Reunification, 68 Corrections Today 98, 98 (2006) ("[C]hildren of...

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